College of William & Mary Law School William & Mary Law School Scholarship Repository

Library Staff ubP lications The oW lf Law Library

2015 George Wythe and the Study of Roman Civil Law in Williamsburg Linda K. Tesar William & Mary Law School, [email protected]

Repository Citation Tesar, Linda K., "George Wythe and the Study of Roman Civil Law in Williamsburg" (2015). Library Staff Publications. 108. https://scholarship.law.wm.edu/libpubs/108

Copyright c 2015 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/libpubs Portrait of George Wythe (1726- 1806), Oil, Mary Sydnor Morel after John Trumbull,

Portrait of Thomas Jefferson, engraving after Alonso Chappel, 1862, Muscarelle Museum of Art, 1977.019

40 GEORGE WYTHE AND THE STUDY OF ROMAN CIVIL LAW IN WILLIAMSBURG

BY LINDA K. TESAR

Those who know of George Wythe, Chancellor of the Commonwealth of Virginia and first law professor in America, are well aware of his contributions as a patriot, an educator and a judge. Others may be surprised to learn of the accomplishments of a founding father who remains relatively unknown outside Virginia. Wythe signed the Declaration of Independence, attended the Constitutional Convention, and served as a chancery court judge for nearly thirty years. But, legal education was by far the greatest contribution of the man who taught among others Thomas Jefferson, John Marshall, and Henry Clay. One historian summed it "Wythe's teaching career may be assessed ... as consequential beyond comparison to that of any successor in American university law teaching."1 Legal historians have marked Wythe's scholarly pursuit of the classical literature of Greece and Rome, and noted how these studies influenced his judicial opinions and his arguments as a lawyer. Scholars have examined his reliance upon Roman law as legal precedent as demonstrated in his published case reports. But, largely because of the loss of his lecture notes or other substantial evidence, some commentators have dismissed Wythe in discussions of Roman law in American legal education.2 True, no documentation exists to prove that Wythe lectured on Roman civil law, but no man in his time revered Greek and Latin classics more than Wythe. Given the ways he managed to convey that enthusiasm throughout his careers as lawyer and judge, it would be only natural to infer that Wythe referenced Roman law in his lectures and encouraged his students to compare the civil and common law systems. While the founding fathers frequently alluded to classical authors, including Justinian, sustained study of Roman law did not occur in the United States until early in the nineteenth century. David Hoffman deserves credit for establishing the first course in Roman law at the University of 3 Maryland in 1816. Prior to that, Ezra Stiles, president of Yale College1 proposed a series of civil law lectures, and may have delivered the first lecture in Roman law in 1792 when he discussed "the Jus Civile ... Pandects and ... Canon Law."'4 Another early educator, James Kent, may have given the first series of "academic lectures in the United States on Roman Law" at Columbia College in 1794.5 None of these "firsts" takes into account what may have happened at the College of William & Mary in the 1780s. When newly-elected governor Thomas Jefferson decided to reform the curriculum at the College of William & Mary in 1779, he persuaded the Board of Visitors to create the position of Professor of Law and Police,6 the first chair of its kind in America. To fill that position, the Board followed Jefferson's suggestion and appointed George Wythe, Jefferson's own legal mentor and one of the most distinguished lawyers in Virginia. Jefferson and Wythe envisioned a curriculum that would train future statesmen and lawmakers- "citizen lawyers." In describing the purpose of his courses, the new professor hoped "to form such characters as may be fit to succeed those which have been ornamental and useful in the national councils of America." 7 Jefferson concurred: "This single school by throwing from time to time new hands well principled into the legislature will be of infinite value".8

41 Jefferson could rely upon his own experience in crafting his vision for legal education at William & Mary. In 1762, he had become Wythe's apprentice and presumably learned from the master the same ideas that Wythe would employ at the College. Among those ideas, Roman law surely had a place. One biographer of Wythe described the young Jefferson and his mentor: The whole range of civil and common law passed under his review, and neither he nor his teacher was content till he had traced painstakingly every principle to its remotest origin in the Roman system or in the period when good King Alfred had ruled the Saxons.9 This propensity for intense study, for tracing a legal idea to its very roots was fundamental to Wythe's approach to the law and naturally would have been reflected in his lectures. Sadly, Wythe's lecture notes, known in 1810, four years after the Chancellor's death, disappeared before they could be published.10 While there may be no class notes to support the idea that Wythe taught Roman civil law, there is strong evidence from his legal and judicial careers to demonstrate Wythe's love of the classics and his use of Roman law. As opposing attorneys in the 1770-1771 case Bolling v. Bolling, Wythe and Jefferson traded references to Justinian's opus. Wythe referenced the Institutes, the Codex and the Digest in his final reply for the plaintiff. 11 In doing so, he established, even before the Revolution, his opinion of the usefulness of Roman precedents in certain circumstances. The books in Wythe's library also add weight to the argument that the chancellor likely lectured on Roman civil law. As demonstrated in this exhibition, Wythe owned a copy of Corpus Juris Civilis, George Harris's English translation of the Institutes, Arnoldus Vinnius's commentary on the Institutes, and the Greek paraphrase of the Institutes by Theophilus. He also owned at least one copy of the Codex Justinianus. In addition, he held copies of Jean Domat's The Civil La1v in its Natural Order (a work which organized the Corpus Juris Civilis "as a series of logical deductions from a number of self-evident premises")12 and John Taylor's Elements of the Civil L aw. Unfortunately, information on the contents of Wythe's library is incomplete. Losses through theft and loans depleted what we know of the chancellor's holdings, and he may have owned a much larger civil law collection than bibliographers suggest. Wythe is known to have acquired multiple Greek and Latin classics in numerous editions, and his interest in Roman law surely encouraged him to collect those titles in multiple editions as well. The strongest evidence of Wythe's admiration for and utilization of Roman law can be found in the chancellor's published case reports. Like many of his time, Wythe associated Roman law "with order, clarity and coherence." 13 As Peter Stein noted in his study on the influence of Roman civil law: Immediately after the Revolution, there was a widespread feeling that efforts should be made to develop a particular American jurisprudence, which would not be just a slavish imitator of the English common law, but would be eclectic - selecting the best principles and methods from whatever system they might be found in. 14 Wythe was a particularly strong proponent of this idea, and he incorporated a deep knowledge of Roman law into his career as a judge.

42 In an article on Roman law in Virginia courts, W Hamilton Bryson comments that Wythe "used the Roman] civil law expertly, and he used it over a wide spectrum of legal points."15 Wythe cited Justinian's Corpus Juris Civilis twenty-one times in his court decisions as precedent.16 The chancellor also commented upon the application of Roman law in two different cases. In one he remarked, "the Roman civil law ... is ordinarily thought a reasonable rule of decision ... " 17 In the other, Wythe explained in sustaining a point "Roman civil law, the authority of which, if not decisive, is respectable, in cases of testamentary dispositions."18 From these comments, "it appears that Wythe considered the Roman law to be of equal value with the English common law as a source of legal ideas and precedents."19 It seems unlikely that a teacher with such mastery of the subject and such respect for the precedential value of Roman law would have refrained from recommending it to his students as well.20 Bryson writes that "no judge or attorney seems to have resorted to the Roman law as often or as enthusiastically." 21 Given this, and given Wythe's reputation concerning Jefferson's legal education, it is reasonable to conclude that Wythe's students at William & Mary benefitted from their erudite teacher's tastes and inclinations. Despite the lack of documentary evidence, at some point Wythe must have translated his passion for Roman law into lectures for his students. If so, his lectures would have been the first academic discussions of Roman civil law on American soil.

1 Paul D. Carrington, "The Revolutionary Idea of University 11 George Wythe, "Reply for the Plaintiff," in ThoJ/Ias Jefferson Legal Education," William & Mm]• LaJV Revie~v 31, no. 3 and Bolling v. Bolling: La1v and the Legal Prrfession in Pre-Revolutionary (Spring 1990): 538. AJIIeJica, ed. Bernard Schwartz with Barbara Wilcie Kern and 2 Lewis C. Cassidy, "The Teaching and Study of Roman Law R.B. Bernstein (San Marino, California: T he Huntingdon Library in the United States," GeorgetO}}J/1 La1v Jotlrna/19 (1930-1931): and N ew York University School of Law; 1997), 415-420, n787, 299: "w]hile the learning of the Chancellor was broad and n791, n793-n794, n801. deep, there is no evidence extant that he lectured on Roman 12 Peter Stein, The Character and Influence of the Roman Civil LaJV: law as such." Histotical Essays (London: The Hambledon Press, 1988), 414. 3 Ibid., 301. 13 Ibid. 4 Charles Phineas Sherman, Roman Law in the A1odern World, 14 Ibid., 415. 3'" ed. (New York: Baker, Voorhis & Co., 1937), 1:409. 15 W. Hamilton Bryson, "The Use of Roman Law in Virginia 5 Lewis C. Cassidy, "The Teaching and Study of Roman Law Courts," in Ame~ican Journal of Legal History 28 (1984): 141. in the United States," 301. 16 Richard]. Hoffman, "Classics in the Courts of the United 6 "Law and police" would today be law and public policy. See States," 22 American Journal of Legal History (1978): 82-83. Paul D. Carrington, "The Revolutionary Idea of University 1 7 "Dandridge et al. v. Lyon," in George Wythe, Decisions of Legal Education," 527, n3. Cases in Virginia fv• the High Court of ChanCel]' JVith Remarks upon 7 George Wythe to John Adams, December 5, 1783, in Papm Decrees fry the Comt of Appeals, Reversing SoJ/Ie of Those Decisions, of John Adams, ed. Robert]. Taylor(Ca mbridge, J\llA: Bellmap 2nd ed., ed. B.B. Minor (Richmond: J.W. Randolph, 1852), 125. Press of Harvard University Press, 1977), 15: 396. 18 "Turpin v. Turpin, et al.," in Ibid., 142. 8 Thomas Jefferson to James Maclison, July 26, 1780, in 19 Bryson, "The Use of Roman Law in Virginia Courts," 141. The Papers of Thomas Jefferson Digitci/ Edition, ed. Barbara B. 20 Ibid. Bryson agrees, stating "it is most likely that he Oberg and J. Jefferson Looney (Charlottesville: University of introduced his students to Roman law] as well." (137-138). Virginia Press, Rotunda, 2008). 21 Ibid.," 143. 9 William Edwin Hemphill, "George Wythe: The Colonial Briton," Ph.D. dissertation, University of Virginia (1937), 134. 10 Robert Bevier Kirtland, George WJ•the: Lclll!J'"; Revolutional]\ Judge (New York: Garland, 1986), 279-282.

43

,\ I